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What Could Go Wrong? Let Me Count the Ways

Consider these headlines: Rampant crime in destination areas. Lax safety standards. Sloppy management. Faulty equipment. Untrained operators. Deliberate targeting of visitors for scams. Or these reports: Cruise line passengers murdered in Antigua. Visitor drowns when caught in hot tub's underwater suction. Resort visitor killed when palm tree fell on his lounge chair. Six tourists disappear from a boat in the Caribbean. Four-day gun battle in Kingston leaves dozens dead. Elephant rampages in Phuket Province kill several visitors. Visitor impaled on a fencepost after bus crash in New Zealand. An airline tossed a frequent flyer out of its program and voided his miles. Tourist dies in rented car due to faulty safety belt. Air bags failed to deploy. Foreign tourists shot in Miami while driving rental car. That's just a sampling of the many mishaps Judge Thomas Dickerson, author of Travel Law, recounts in recent travel-law articles. But you get the drift: Lots of bad stuff can happen when you're traveling.

What's especially troublesome about Judge Dickerson's listing of specific woes isn't just the bad stuff; it's the fact that as a victim, in all too many cases, you are denied redress from responsible parties. Sometimes, it's because laws and regulations, such as the Montreal Convention for airlines, insulate suppliers from the need to provide compensation. Sometimes your beef is with a foreign supplier with no presence in the United States or Canada. But often it's because you knowingly or unknowingly signed away your rights when you arranged your trip. And that leads to this week's focus on consumer issues: contracts of adhesion.

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The legalese here is pretty straightforward: A contract of adhesion, according to The Free Dictionary, is a contract "so imbalanced in favor of one party over the other that there is a strong implication it was not freely bargained." You find these contracts everywhere; after all, when you go into a store and buy something at the posted price, neither you nor the store has the time to sit down and negotiate an individual contract. But in typical contracts of adhesion with airlines, cruise lines, tour operators, rental car companies, and others you are often required to sign away some important rights, especially when a supplier stonewalls your request for compensation and you need to bring a matter to a law court. Among the most onerous:

  • You agree to limit any lawsuit to a specific court—the so-called "forum" clause—that may be inconvenient to you or even totally impractical. Sometimes, it's a state, typically Florida for cruise lines, which may be a long way from home. All too often, it's in a foreign country.
  • You agree to forego recourse under laws in your own state and instead agree to limit action to federal law—typically far less consumer friendly than state law—or maybe even to foreign law, where limitations may be severe.
  • You waive a right to court and instead agree to arbitration—another consumer-unfriendly venue.
  • You waive the right to join in a class-action suit.
  • With airlines, you agree that the airline owns your frequent-flyer miles and can do anything it wants with them, even for miles the airline says it "sells" you. Yes, "sell" implies transfer of ownership, but not in the airline business.

Courts often hold that, in particularly egregious cases, adhesion contracts are either so one-sided or so restrictive as to be unenforceable. But Judge Dickerson's extensive case citations reveal another vexation: Courts have been inconsistent—you might even say capricious—in whether or not individual adhesion contracts are enforceable.

This report is another in my series of 10 consumer issues in travel; read the complete list here. And, in common with several of the other 10, as an ordinary consumer, you can't do much to avoid the problems or fix the system. Again, my job here is to warn you, not to offer any easy "tips" or glib advice. It's another case of "be warned," of which you face all too may already.

Ed Perkins Seniors on the Go is copyright (c) 2014 Tribune Media Services, Inc.

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